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Deep water: Advances in offshore wind and their legal significance

Offshore wind farms could answer our energy issues but historical problems have hindered their use. But exciting technological developments suggest the winds are about to change.

Until recently, the construction of offshore wind farms had been restricted to relatively shallow coastal waters.

One of the reasons for this is the technological challenges with foundations for the turbines suitable for deep water and the associated difficulties in installation.

Notwithstanding this, there remains huge potential for offshore wind to assist in satisfying global energy requirements as part of the rebalancing of the energy market.

The UK and other countries in northern Europe (notably Denmark) have been leading the push into offshore wind and remain at the forefront.

It is also now becoming increasing popular elsewhere, including in the US where the state of Massachusetts has recently committed to produce 1.6 GW of offshore wind energy within the next decade.

Building deeper

A long-term goal of the industry is to find ways to build wind farms in deeper waters, further from the shore. This has a number of advantages.

Deeper water allows for larger turbines which, in turn, means more power can be produced from fewer assets. This increases the profitability of each wind farm against initial installation and ongoing maintenance costs. It also means the industry has more potential sites to develop wind farms, and allows access to areas of stronger and more consistent winds that were previously inaccessible.

Importantly, moving further offshore also helps solve the issue of public hostility to the development of offshore wind farms in locations where they can be seen from the coast.

Two advances in technology in particular now look set to aid the construction of offshore wind farms in deeper waters.

“Moving further offshore also helps solve the issue of public hostility to the development of offshore windfarms in locations where they can be seen from the coast”

First, improved foundation designs such as jacket foundation technology, in part borrowed from the offshore oil and gas industry, have meant that traditional, fixed-asset wind farms can be built in deeper waters than ever before.

The second advance is the development of viable floating turbines. These have no foundation and are instead securely tethered to the seabed, which means that not only can they be located in deeper waters, they also cost less to install and maintenance costs are reduced because they can be towed to shore for repair.

Lessons learned

These developments represent an exciting opportunity for the industry. From a legal perspective, new technology brings new risks.

The industry has learned from the effects of the design flaws inherent in grouted connection monopile foundations that were installed in many offshore wind farms over the past decade.

“The industry has learned from the effects of the design flaws inherent in grouted connection monopile foundations that were installed in many offshore wind farms over the past decade”

This led to a number of disputes and next month the Supreme Court is due to hear E.ON’s appeal in its dispute with MT Højgaard relating to the construction of the Robin Rigg Wind Farm.

The Supreme Court will determine whether the contract contained a fitness-for-purpose provision (effectively placing responsibility for the grouted connection issue on the contractor) or whether the design duty was limited to one of reasonable skill and care. The decision is awaited with interest and may have an effect well beyond the offshore wind industry.

Mitigating risk

No one knows what further hidden challenges the new advances in technology may bring with them and a clear identification of design responsibility within project contracts will remain of critical importance. Procurement is also likely to remain on a split basis, with no one contractor willing to take all risk in relation to a project.

Deeper water and new technology heighten the need for developers to mitigate interface risk sufficiently. For example, suitable allowances for weather issues will become all the more important the further offshore the site is located, given the increased likelihood of adverse weather. This will be important both for the marine campaigns during installation and for the purposes of maintenance over the life of the wind farm.

Whatever happens, offshore wind is likely to remain a key aspect of any sustainable energy strategy for countries with coastal waters and will represent a significant opportunity for construction over the coming years.

Tom Duncan is a partner, and George Fisher is an associate, in the construction and engineering team at Mayer Brown

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